COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss.
Superior Court Department
Civil Action No. 1681CV01933
GEORGE CAPLAN, et al.,
thirteen taxable inhabitants, citizens-taxpayers of
Acton, Massachusetts,
Plaintiffs,
v.
TOWN OF ACTON, MASSACHUSETTS,
inclusive of its instrumentalities and the
Community Preservation Committee,
Defendant.
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DEFENDANT TOWN OF ACTON’S MEMORANDUM IN OPPOSITION
TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
Pursuant to Mass. R. Civ. P. 65(a), the Defendant Town of Acton (the “Town”) opposes
the Plaintiffs’ motion for a preliminary injunction to prohibit the Town from paying three
historic preservation grants appropriated by the 2016 Annual Town Meeting from the Town’s
Community Preservation Act (“CPA”) fund. The Town appropriated CPA funds for historic
preservation projects at two historic churches in historic districts in return for permanent historic
preservation restrictions. The Plaintiffs have not shown any likelihood of success on their claim
that these grants violate the Anti-Aid Amendment to the Massachusetts Constitution or that a
preliminary injunction would be in the public interest. Their motion should be denied.
FACTS
I.
The Community Preservation Act
The CPA was enacted to enable municipalities to fund projects involving open space,
recreational use, historic resources and community housing. G.L. c. 44B, §§3-7; see Seideman v.
City of Newton, 452 Mass. 472, 473-474 (2008). The CPA took effect in Acton “upon the
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approval by the legislative body [Town Meeting] and [its] acceptance by the voters of a ballot
question” pursuant to G.L. c. 44B, § 3. Affidavit of Roland Bartl (“Bartl Aff.”) ¶ 2, Ex. 1. After
accepting the CPA, the Town established a Community Preservation Committee (“CPC”) to
“study the needs, possibilities and resources of the city or town regarding community
preservation.” G.L. c. 44B, §§ 5(a), (b)(1); Bartl Aff. ¶ 16, Ex. 12. The CPC gathers
information, consults with municipal boards, holds public informational hearings, and “make[s]
recommendations to [Town Meeting] ... for [among other things] the acquisition, preservation,
rehabilitation and restoration of historic resources.” G.L. c. 44B, § 5(b)(2). It incorporates its
overall findings in the Town’s Community Preservation Plan (the “CPA Plan”). Bartl Aff. ¶ 17,
Ex. 13. After receiving the CPC's recommendations, Town Meeting makes appropriations from
the Community Preservation Fund and other sources as it deems appropriate. G.L. c. 44B, § 5(d).
II.
The Town’s Historic Districts and the Historic Resources at Issue in this Case
The buildings at issue in this case are located in the Acton Center and South Acton
Historic Districts, established by the Town pursuant to G.L. c. 40C. Bartl Aff. ¶ 6.
A.
The Acton Center Historic District and Acton Congregational Church
The Acton Center Historic District is listed on the National and State Registers of
Historic Places. Bartl Aff. ¶ 9, Exs. 2-5; see 950 CMR 71.03 (definition of State Register).
Beginning with the Town’s creation in 1735,1 Acton Center “has been the location of the Town
Common, the training field, and the First Meeting House.” Bartl Aff. Ex. 4, p. 4. In 1806,
“Acton Centre began to develop as a nucleus for civic and religious activities” and became “the
1
See Province Laws, 1735-36, 1st Sess., Chapter 10, titled “An Act for Dividing the Town of Concord, and Erecting
a New Town There by the Name of Acton” (the “1735 Act”). Attachment A. The 1735 Act established that “the
said north-westerly part of Concord, together with the said farms, be and hereby are set off, constituted and erected
into a distinct and [separate] township, by the name of Acton” provide that “the inhabitants of the said town of
Acton do, within the space of three years from the publication of this act, erect and finish a suitable house for the
publick worship of God, and procure and settle a learned, orthodox minister, of good conversation, and make
provision for his comfortable and honourable support.” Id., §§ 1, 3.
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geographic center of the large sprawling town … characterized by 19th century dwellings and
civic buildings lining the Main Street with an oblong Common at the cross roads of Main Street,
Concord Road[.]” Id.
“Three mid to late 19th century institutional buildings[,] … the Congregational Church
(1846) …, the Town Hall (1863) …, and the Acton Memorial Library (1889)” are situated on or
around the Town Common at the heart of the Acton Center Historic District. Bartl Aff. ¶ 10,
Exs. 4, pp. 4, 5. The Acton Congregational Church and its associated buildings, the Abner
Hosmer House and the John Fletcher House, are located in the Acton Centre National Register
Historic District and the Local Historic District, contributed to the District’s listing on the
National and State Registers and designation as a Local Historic District, are listed on the
Massachusetts Historical Commission’s (“MHC”) Inventory of Historic Assets of the
Commonwealth, and have been determined by the Acton Historical Commission to be significant
in the history, architecture or culture of the Town. Bartl Aff. ¶¶ 8, 11-12, Exs. 2-8. The current
church was built in 1846 and extensively remodeled in 1898. Bartl Aff. Ex. 6, p. 6. Its stained
glass windows date from the 1898 remodeling and feature prominently in the building’s
inventory of historic resources. Id.
B.
The South Acton Historic District and South Acton Congregational Church
The South Acton Village Historic District is also included on the State Register of
Historic Places. Bartl Aff. ¶ 13, Exs. 3, 9, 10. The District has been determined by the Acton
Historic Commission to be significant in the history, architecture and culture of the Town. Bartl
Aff. ¶¶ 8, 13, Ex. 9. Portions of it are also eligible for listing on the National Register. Id.
South Acton Village “developed as a result of the available mill privileges on Fort Pond
Brook and Mill Pond, and the coming of the railroad in 1844.” Bartl Aff. Ex. 9. “Commercial
and institutional architecture is located at the center of the village,” with extant buildings built
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specifically for non-residential use dating to the mid 19th century. Id. There are “two churches
in South Acton, both of which are late 19th century ... and reflect architectural styles for which
there are very few examples in Acton and none in South Acton.” Id. “The 1878 Universalist
Church (140 Main Street) is a Stick Style building while the 1892 Congregational Church (29
School Street) is representative of Shingle Style.” Id. The “growth and development of the
schools and religious societies [in South Acton] are important in that they reflect the growth and
self-contained aspect of South Acton Village[.]” Id.
The 1892 South Acton Congregational Church is separately listed on MHC’s
Massachusetts Cultural Resource Information System (“MACRIS”) Inventory (Bartl Aff. ¶ 15,
Ex. 11), is centrally located on School Street in heart of the South Acton Village Historic District
(Bartl Aff. ¶ 15, Ex. 10), and contributed to the creation of the South Acton Village Historic
District and its listing on the State Register (Bartl Aff. ¶ 15, Ex. 9). The church has been
determined by the Acton Historical Commission to be significant in the history, architecture or
culture of the Town and “eligible for National Register nomination as part of the School RiverMain Mill and Commercial Historic District” because of its “association with the development of
the railroad community from the 1840s … [and] its representation of the one of two church
properties in South Acton and the only Queen Anne institutional building in the proposed
district” (Bartl Aff. ¶¶ 8, 15, Ex. 11, p. 3). Indeed, the church is “one of the best examples in
Acton of the Queen Anne/Shingle Style” and “the only local example of an institutional building
in the Queen Anne/Shingle Style of architecture”. Bartl Ex. 11 at pp. 4, 8. Its variety of shapes
and roof lines feature prominently in its inventory of historic resources. Id. at pp. 4-5.
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III.
The CPA Grants in this Case
A.
The Acton Congregational Church Projects
On November 15, 2015, the Acton Congregational Church applied for two CPA grants
for preservation, rehabilitation and restoration of historic resources:
1. $49,500 to fund a Master Plan for the preservation of three historic properties located at
8, 12, and 20 Concord Road to evaluate and identify critical needs and set restoration and
rehabilitation priorities to preserve these historic assets for future years (Bartl Aff. ¶¶ 2122, Ex. 14); and
2. $41,000 (later revised to $51,237) to fund the rehabilitation and restoration of eight (later
revised to 11) 120±-year-old stained glass windows installed in the sanctuary building
honoring members of the church (Bartl Aff. ¶¶ 21, 23 26, Ex. 16).
The master plan project covers the John Fletcher and Abner Hosmer Houses as well as
the church itself, and will involve hiring an architectural consultant to “thoroughly investigate
each of the 3 historic buildings to identify all the needs of each building in order to protect and
preserve these historic assets for further generations.” Bartl Aff. Ex. 14. For the sanctuary
building, this investigation includes an evaluation of the bell tower, stained glass windows and
building envelope (windows, doors, siding, and roof); for the John Fletcher and Abner Hosmer
Houses, it includes evaluation of the building envelopes, insulation, wiring, heating, plumbing
and fire code issues. Id. This project constitutes the comprehensive planning “for the
preservation, rehabilitation and restoration of historic resources” to the Standards for
Rehabilitation stated in the United States Secretary of the Interior's Standards for the Treatment
of Historic Properties. See G.L. c. 44B, §§ 2 and 5(b)(2).
Because of ongoing deterioration, the stained glass window project will immediately
stabilize and protect the stained glass windows from further harm. Bartl Aff. Ex. 16, pp. 4, 6.
Currently, the wood around the windows is rotting and not weathertight; and the existing exterior
Plexiglas is installed directly into the windows’ wood framing, trapping moisture and causing the
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accumulation of a powdered lead substance on the windows and the deterioration of the lead
strips. Id. The project will remove the old plastic covers, repair wood damage, replace missing
or broken glass, seal the glass, scrape and paint the wood, and install new glazing/caming. Id.
All three historic buildings and eleven stained glass windows are visible from the Concord Road
public way or sidewalk, the Town Green, the publicly accessible foot path from the Church to
the parking lot, or the parking lot. Bartl Aff. ¶¶ 22-23, Exs. 15, 17.
B.
The South Acton Congregational Church Project
On November 19, 2015, the South Acton Congregational Church requested $15,000 to
perform work on the roof “to prevent ice dam formation … to preserve an historic structure.”
Bartl Aff. ¶ 24, Ex. 18. Without these repairs, “ice dams will continue to form each winter
resulting water backing up into the roof and leaking into the building, damaging the ceilings,
walls, and eventually rotting the structure.” Id. The “work sought to be done through CPA
funds will meet the CPC’s Historic Preservation Goals by protecting and preserving a historic
property and helping to preserve the existing historical character of the town.” Id. The historic
building is visible from the School Street public way and sidewalk. Bartl Aff. ¶ 24, Ex. 19.
C.
The CPC Process
On December 17, 2015, the CPC held a public hearing on the churches’ applications and
deliberated on the applications at subsequent meetings. Bartl Aff. ¶ 25-26, Ex. 20. At the CPC
meetings, no Acton taxpayer opposed CPA funding for any of these three projects based on the
Anti-Aid Amendment. Bartl Aff. ¶ 28. On February 25, 2016, the CPC “voted unanimously to
approve for recommendation at Town Meeting the appropriations schedule.” Bartl Aff. ¶¶ 2627, Exs. 21-22. The CPC based its determination on the significance of the historic resources,
the eligibility of the projects for funding under the CPA, and the availability of CPA funds, not
on the identity or motives (financial or otherwise) of the applicants. Bartl Aff. ¶ 28.
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On April 5, 2016, based on the favorable recommendations of the CPC, the Selectmen
and the Finance Committee, Town Meeting voted to approve the CPA warrant article, including
the grants for these three projects. Bartl Aff. ¶ 28-30, Ex. 23-24. The Town then issued grant
award letters to each church, with standard conditions, including (Bartl Aff. ¶ 31, Exs. 25-27):2

“Execution, conveyance to the Town, and recording of a historic
preservation restriction for the property … [that] shall be perpetual to the
extent permitted by law”;

“All CPA fund disbursements shall be made as reimbursements … after
receipt by the Planning Director of [the churches’] invoices”; and

“All invoices shall include ... [s]tatements ... certifying that all work items
listed in the invoice have been completed ... consistent with the project
scope presented in [the] funding application.”
Upon completion, all work on the roof and the windows must be certified by the Acton Historic
District Commission as meeting “the Secretary of the Interior’s Standards for the Treatment of
Historic Properties, 36 C.F.R. Part 68,” and any unused funds must be returned to the Town. Id.
IV.
Consistency with other Historic Preservation Grants at the Local and State Level
The CPA grants challenged in this case are entirely consistent with previous funding
approvals by the Town, other towns across Massachusetts and the state.
Over the years, Acton Town Meeting has approved CPA projects for 14 historic
resources similar to those here, as summarized in the following table (Bartl Aff. ¶ 37):
Historic Building/ Resource
Town Hall
Memorial Library
West Acton Citizens’ Library
Windsor Avenue Antique Fire House
468 Main Street
Historic
District
Center
Center
West
West
Center
2
Ownership Windows
Town
Town
Town
Town
Town
X
X
X
X
X
Roof
Master
Planning
X
X
To the extent that acceptance of the grant award letters already obligates the Town to provide the CPA funding at
issue, Bartl Exs. 26-27, the accepted grants may be beyond the reach of a 10 taxpayer suit under G.L. c. 40, § 53,
which applies only if the Town is “about to raise or expend money or incur obligations purporting to bind said
town” (emphasis added).
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Historic Building/ Resource
Morrison Farm
Jonathan & Simon Hosmer House
Jonathan & Simon Hosmer House
complex (Jenks Library and Mowry
Storage Shed)
Jones Tavern
Theatre III (former church)
Acton Women’s Club
West Acton Baptist Church
John Robbins House
Exchange Hall
Historic
District
N/A
N/A
N/A
Ownership Windows
Town
Nonprofit
Nonprofit
South
West
Center
West
N/A
South
Nonprofit
Nonprofit
Nonprofit
Religious
Private
Private
Roof
Master
Planning
X
X
X
X
X
X
X
X
X
X
X
Other
X
Acton is one of 161 cities and towns in Massachusetts that has voted to accept the CPA
and utilize its funding mechanism for eligible projects. Of the 8,459 approved CPA projects,
approximately 4,134 of those involve historic resources. Fowler Aff. ¶ 4. CPA funding is not
limited to public sector recipients; private entities have received a significant portion of CPA
funding for historic preservation and other projects across the state. Saginor Aff. ¶ 7-8. In fact,
Massachusetts municipalities have approved at least 307 CPA projects involving religious
institutions, including 35 for stained glass windows, 77 for roofs and associated structures, and 4
for master planning for historic preservation. Fowler Aff. ¶ 5.
In addition, MHC administers a variety of federal and state grant programs for historic
preservation of publicly and privately owned resources. Holtz Aff. ¶ 4. In recent years, MHC
has approved funding for 38 projects (16.5% of the projects) involving preservation of historic
resources of active religious institutions through its Massachusetts Preservation Projects Fund,
including Vilna Shul in Beacon Hill, Trinity Church in Boston, and St. George Greek Orthodox
Cathedral in Springfield. Id. at ¶ 7. These numbers reflect the importance of religious buildings
to preserving the history of the Commonwealth. See Saginor Aff. ¶¶ 9-10; Holtz Aff. ¶ 4.
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V.
This Suit and Preliminary Injunction Motion
On July 7, 2016, 13 Acton taxpayers filed the Complaint under G.L. c. 40, § 53.3 Their
only claim is that payment of public funds for these projects would violate art. 18, as amended
by arts. 46 and 103, of the Amendments to the Constitution of the Commonwealth (the “AntiAid Amendment” or “Art. 46”). Complaint ¶¶ 8, 68. On July 8, they served their Motion for
Preliminary Injunction, seeking to prohibit the Town “from paying three grants to Acton
Congregational Church and South Acton Congregational Church[.]” Pl. Motion at 1.
ARGUMENT
I.
The Standard for a Preliminary Injunction in a Ten-Taxpayer Suit
To obtain a preliminary injunction in a 10-taxpayer suit under G.L. c. 40, § 53, the
plaintiffs “must show a likelihood of success on the merits and that the requested relief would be
in the public interest”; irreparable harm is not required. Fordyce v. Town of Hanover, 457 Mass.
248, 255 n. 10 (2010). The Plaintiffs fail both prongs of that test.4 This is particularly so since
the Town is afforded “every presumption in favor of the honesty and sufficiency of the motives
actuating public officers in actions ostensibly taken for the general welfare.” LaPointe v.
License Board of Worcester, 389 Mass. 454, 459 (1983).
3
The Town accepts the Plaintiffs’ allegations of their addresses and taxpayers status for purposes of this motion
only, see Complaint, Exhibit N, but reserves its rights on that issue.
According to a pre-suit letter from counsel at Venable, LLP (Complaint Exhibit K), the moving force behind this
suit is Americans United for Separation of Church and State, a 501(c)(3) nonprofit organization based in
Washington, D.C. Because Americans United does not itself satisfy the jurisdictional requirement to sue under G.L.
c. 40, § 53, see Litton Bus. Sys., Inc. v. Comm'r of Revenue, 383 Mass. 619, 621-622 (1981), it solicited the plaintiffs
in this case. Indeed, according to its press release, “Americans United … has filed a lawsuit to stop the town of
Acton, Mass., from spending taxpayer funds to support two local churches.” See https://www.au.org/media/pressreleases/mass-town-should-not-use-public-funds-to-support-its-churches-americans-united.
4
Except for Complaint Ex. N (one-page affidavits on the Plaintiffs’ status), the Plaintiffs have neither verified the
Complaint nor submitted any affidavits in support of their motion as required by Mass. R. Civ. P. 65(a). The motion
should be denied for that reason alone. See Eaton v. Federal Nat. Mortgage Assoc., 462 Mass. 569, 590 (2012).
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II.
The Plaintiffs Cannot Show a Likelihood of Success on the Merits
The plaintiffs challenge the constitutionality of historic preservation grants under the
CPA solely because the owners of the buildings are active religious congregations. They cannot
show a likelihood of success where nothing in the Anti-Aid Amendment prohibits “preservation,
restoration or rehabilitation of historic structures of active churches” (Complaint ¶67) through
the neutral criteria of the CPA and neutral implementation by the Town.
The Amendment provides (emphasis added):
No grant, appropriation or use of public money or property or loan of credit
shall be made or authorized by the Commonwealth or any political subdivision
thereof for the purpose of founding, maintaining or aiding any infirmary,
hospital, institution, primary or secondary school, or charitable or religious
undertaking which is not publicly owned and under the exclusive control, order
and supervision of public officers or public agents authorized by the
Commonwealth or federal authority or both [except for the Soldiers' Home in
Massachusetts, public libraries, and existing legal obligations]; and no such
grant, appropriation or use of public money or property or loan of public
credit shall be made or authorized for the purpose of founding, maintaining
or aiding any church, religious denomination or society.
“In an art. 46 inquiry, as in any constitutional adjudication, [the court] must begin with
the familiar principle of statutory construction that affords a statute a presumption of
constitutional validity.” Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 674675 (1981) (citation omitted). “Unless the specific constitutional provision requires a heightened
standard of scrutiny, one attacking a statute upon a constitutional ground bears the heavy burden
of proving the absence of any conceivable basis upon which the statute may be supported.” Id.5
The Supreme Judicial Court has “listed three guidelines to analysis in deciding whether a
particular expenditure of public funds would violate art. 46”:
5
Although couched as a challenge to three particular grants, the plaintiffs are in essence arguing that the CPA,
insofar as it funds churches and other non-public entities, violates the Anti-Aid Amendment. Such constitutional
challenges require notice to the Attorney General’s Office under Mass. R. Civ. P. 24(d). The plaintiffs do not claim
that they have provided any such notice.
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(1) whether the purpose of the challenged statute is to aid [a private charity]; (2)
whether the statute does in fact substantially aid [a private charity]; and (3)
whether the statute avoids the political and economic abuses which prompted the
passage of art. 46.
Helmes v. Commonwealth, 406 Mass. 873, 876 (1990); Springfield, 382 Mass. at 675 (noting that
the factors are “cumulative and interrelated, and that [its] conclusion results from a balancing of
the various interests at stake”).
These guidelines apply under both clauses of the Amendment. The plaintiffs attempt to
bifurcate the Amendment into what they call a “General Prohibition” and a more specific
“Religious Prohibition,” claiming that these CPA grants violate both. Pl. Memo. at 9-16. They
admit that the guidelines apply to the “General Prohibition” (Pl. Memo. at 13) but contend that
the guidelines do not apply to the “Religious Prohibition” (id. at 10-12). However, neither the
plain language of the Amendment nor the case law supports such a distinction. The two clauses
apply to the same funds (a “grant, appropriation or use of public money or property or loan of
credit”) and for the same purposes (“founding, maintaining or aiding”) whether to various private
entities or a “church, religious denomination or society.” See Bloom v. School Comm., 376
Mass. 35, 39 (1978) (the “anti-aid amendment marks no difference between ‘aids,’ whether
religious or secular),” cited in Pl. Memo at 13. The plaintiffs’ attempt to evade the SJC’s
guidelines for an action under the Amendment fails.
The SJC’s decisions under the Anti-Aid Amendment compel the conclusion that Acton’s
CPA grants fully comply with the Amendment. In Helmes, 24 taxpayers sued the state under
G.L. c. 29, § 63 (the state analog of a 10-taxpayer suit under G.L. c. 40, § 53) to enjoin the state
from appropriating $6 million dollars to a private charitable corporation to rehabilitate the USS
Massachusetts. Applying the guidelines, the SJC concluded that the payment was lawful and
upheld the denial of a preliminary injunction because the taxpayers had not demonstrated a
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likelihood of success on the merits of their claim. 406 Mass. at 876-877. It found that there was
“no evidence of a purpose to aid the [private entity] as such” simply because the state was
appropriating funds to it for a dedicated public purpose. Id.
In Springfield, the Commonwealth sued the school committee to require compliance with
G.L. c. 71B, including payment of the special education expenses of certain public school
students at private schools (subject to receipt of some state and federal aid). 382 Mass. at 667.
The school committee argued that the statutory requirement violated art. 46. Id. at 667. Despite
the article’s “clear and peremptory” language, the SJC rejected that argument based on the three
guidelines. Id. at 673, 683 (citations omitted). See also Attorney Gen. v. School Comm. of
Essex, 387 Mass. 326, 335 (1982) (“G.L. c. 76, § 1, guaranteeing that those attending private
schools in fulfillment of the compulsory attendance requirements shall be entitled to
transportation to the same extent as public school students, does not violate art. 46.”).
A.
The CPA’s Purpose Has Nothing to Do with Funding Religious Activities.
The plaintiffs assert that the “principal purpose of the grant is to aid the churches.” Pl.
Memo at 14. That argument fails.6
The CPA authorizes municipalities to award grants for “the acquisition, preservation,
rehabilitation and restoration of historic resources.” G.L. c. 44B, § 5(b)(2). Acton’s CPA Plan
specifically recognizes that the “rural, agricultural, and historic character of Acton is currently
threatened by the rapid rise of local land values” and adopts a series of “Historic Preservation
Goals,” the primary one being to “[p]rotect, preserve, and/or restore historic properties and sites
throughout Acton, which are of historical, architectural, archeological, and cultural significance.”
Bartl Aff. ¶ 17, Ex. 13 (19-20). Nothing in the CPA suggests that its purpose is to found,
6
The Plaintiffs misstate the issue under the first Helmes guideline; it focuses on the purpose of the statute, not the
specific grant. In any event, nothing suggests that the purpose of these grants is for anything other than the historic
preservation described above.
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maintain or aid religious activities. See Springfield, 382 Mass. at 677 (nothing in the statutory
scheme suggests a purpose to aid private schools in violation of Art. 46). Nor do the Plaintiffs
even argue that.
The Massachusetts Department of Revenue (“DOR”) has confirmed that appropriating
CPA funds to a private, non-profit organization for the rehabilitation or restoration of historic
properties is an allowable purpose under the Anti-Aid Amendment. Bartl Aff. ¶ 34, Ex. 28.
“There is nothing in the CPA that prohibits the use of funds for this project simply because the
property is privately owned,” and while under the Anti-Aid Amendment any expenditure of
public funds “must be to advance a public purpose,” the “preservation of historic assets is
generally understood to have legitimate public purposes.” Id. Both the federal and state
governments “have various historic grant programs, which include grants to non-profit
organizations” that typically “result in the public acquiring an historic preservation restriction or
receiving some other benefit to ensure that the grant is for public rather than private purposes.”
Id. Where a town “will acquire an historic preservation restriction and the organization must use
the funds received in exchange to finance the rehabilitation … the town is receiving an interest in
the property to ensure that its investment of public funds benefits the public through the
preservation of a piece of the town’s history.” Id.
Under this guideline, the plaintiffs rely solely on City of Springfield v. Dreison
Investments, Inc., 2000 WL 782971 (Hampden Super. Ct. Feb. 25, 2000), Pl. Memo at 14, but
that reliance is misplaced. In Dreison, the court invalidated eminent domain takings for the
purpose of leasing the property to a private entity to attract a minor league baseball team. Id.
Addressing the Anti-Aid Amendment in two paragraphs at the end of a 50-page decision, the
court identified two major distinctions between the permissible funding in Helmes and the taking
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in that case. First, it found that the primary purpose of the taking, to grant “a leasehold estate to
a private entity so that entity can build a stadium for its baseball team,” lacked any public
purpose, contrasted with the sole purpose of the funding and the nonprofit entity in Helmes was
to preserve a historic relic for the public. Id. at *50. It did not (and as a lower court could not),
as the plaintiffs argue (Pl. Memo at 14), announce a new standard under which funding of private
entities is permissible under the Anti-Aid Amendment “only if the charity serves solely public
purposes.” Second, the recipient’s “bad faith” and “misrepresentations” were a major factor in
finding the Anti-Aid Amendment violation. 2000 WL 782971, at *50. There is no suggestion of
any such improprieties by the churches here. Dreison does not support the plaintiffs’ claim.
B.
The Effect of the CPA and These Grants is to Promote Historic Preservation.
The CPA grants in this case do not substantially aid the churches within the meaning of
the Anti-Aid Amendment. Rather, the two historic districts, four historic buildings, and 11
stained glass windows all constitute significant historic resources significant to the Town. The
Town has appropriated CPA funds to preserve those resources and will acquire historic
preservation restrictions, consistent with the CPA, G.L. c. 44B, § 12(a), and DOR’s opinion, and
subject to MHC’s oversight under G.L. c. 184, §§ 31-32. The CPA funds do not “found,
maintain or aid” either church’s mission; they are expressly limited solely to reimburse expenses
actually incurred in the historic preservation projects. Bartl Aff. ¶ 31, Exs. 25-27 (award letters
requiring invoices, receipts and certifications of the work). With the historic preservation
restrictions, the public will have the benefit of the intact historic resource for generations,
regardless of who owns the buildings.
The plaintiffs argue that by “[improving] a church building,” the CPA funding
“undeniably serves a church’s religious mission.” Pl. Memo at 15. They cite no legal support
for this bald assertion. Instead, they highlight one sentence from the Acton Congregational
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Church’s application describing the financial strain on the church and the need for public
assistance in preserving the property. Id. According to the plaintiffs, this sentence proves a
prohibited connection between the funding of these projects and the programmatic needs of the
church, namely, that the funding frees up other church funds for religious use. Id. at 11, 15.
This argument fails.7 Providing public funding to a private organization may or may not
free up some of that organization’s funds for other uses (the recipient may lack funds for its other
needs even with the funding or, even without the funding, the recipient may decide that its other
needs are paramount and forego the preservation work). In any event, whether and how the
recipient spends other money is entirely up to it; the Town does not take into account such
consideration in awarding CPA funds. Bartl Aff. ¶ 28. The recipient’s decision cannot be a
basis for invalidating a CPA grant under the Amendment. Even if the funding were to provide
some incidental or secondary benefit to the churches, that does not render it contrary to Art. 46.
See Springfield, 382 Mass. at 680-681 (the secondary and indirect benefits to private schools
does not qualify as “substantial aid” under the Anti-Aid Amendment).
Not surprisingly, the plaintiffs’ attenuated funding argument has been squarely rejected.
DOR has specifically declined the request of Americans United to issue a rule or regulation
under G.L. c. 44B, § 17, “to clarify that government funds may not be used to renovate buildings
7
The plaintiffs rely on Opinion of the Justices, 357 Mass. 836, 844 (1970) (the “1970 Opinion”) and Opinion of the
Justices to the Senate, 401 Mass. 1201 (1987) (the “1987 Opinion”). Those Opinions have no precedential value,
Tobias v. Secretary of Commonwealth, 419 Mass. 665, 675 (1995), and the SJC “most sedulously guard[s] against
any influence” such opinions might have, Perkins v. Inhabitants of Town of Westwood, 226 Mass. 268, 272 (1917).
In any event, the Opinions are readily distinguishable because the proposed funding lacked any public benefits. The
1970 Opinion involved a proposed statutory program to use public monies to fund the operational budgets of private
schools, which could be used for supplying a wide array of school services. Thus, the funding directly aided the
schools’ mission and daily functions without providing a benefit to members of the public who did not attend the
schools. Similarly, the 1987 Opinion involved a proposed bill for tax deductions for education-related expenditures
like tuition, textbooks, and transportation incurred in attending public or nonprofit schools, as well as for certain
tutoring and related expenses. Because public school students “receive their education, including textbooks, from
municipalities in the Commonwealth free of charge,” the benefits of these proposed tax deductions “would flow
exclusively to those taxpayers whose dependents attend private schools and, as a result, to the private schools
themselves.” Id. at 1209 (citations omitted).
{A0378024.12 }
15
used for religious worship." Bartl Aff. ¶ 35, Ex. 29. It observed that Americans United did “not
cite any state or federal case expressly holding that providing historic preservation grants to
rehabilitate historically significant church buildings is unconstitutional either under the United
States or the Massachusetts Constitutions.” Id. To the contrary, DOR cited with approval the
Opinion from the Office of Legal Counsel of the U.S. Department of Justice (Bartl Aff. ¶ 36, Ex.
30) approving grants to religious institutions, including the Old North Church in Boston.8
In Hughes v. Town of Oak Bluffs, Duke's County Super. Ct. C.A. No. 1374CV00042, the
plaintiffs made the same argument – with the CPA grant funds to preserve stained glass windows
in a historic church building, the recipient “will be able to dedicate other church revenue for
religious worship activities that otherwise would have been used for the restoration and
maintenance of the church building.” Plaintiff’s Response (Docket #11, filed November 14,
2013). The court rejected that argument and denied a preliminary injunction. Attachment B. As
long as the public funds are used for the designated purpose, the funding is permissible. See
Helmes, 406 Mass. at 877 (where the appropriation imposes a requirement that the public funds
be used only for the designated public purpose of rehabbing the historic vessel, there is “no
evidence of a purpose to aid the [private entity] as such”). Even more stringent funding
restrictions are in place here. Bartl Aff. Exs. 25-27 (reimbursement with proof of expenditures,
grant of historic preservation restriction, and certification that funds were used as proposed).
8
The Town’s historic preservation grants to the churches are consistent with these criteria. They are awarded for
the secular purpose of historic preservation, including the acquisition of a perpetual historic preservation restriction.
They were available to a broad class of potential recipients (religious and secular), as evidenced by the Town’s CPA
grants for similar historic preservation projects regardless of ownership – including six Town-owned projects, five
non-profit-owned projects (including Theatre III in the former building of the West Acton Universalist Church and
the Acton Women’s Club in the former building of the Acton Congregational Church), one religious-owned project
and two privately-owned projects. Bartl Aff. ¶¶ 37-40. And they are administered neutrally, neither advancing nor
inhibiting religion, as evidenced by the grant conditions in the CPA grant award letters. Bartl Aff. ¶ 31, Exs. 25-27.
{A0378024.12 }
16
Even courts addressing First Amendment challenges have determined that government
funding of the preservation of historic churches does not have “primary effect of advancing
religion.”9 For example, in American Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567
F. 3d 278 (6th Cir. 2009), the plaintiff challenged under the Establishment Clause and its state
analog the public funding of a church through a downtown revitalization program. Id. at 284
(the work included exterior façade improvements, including stained glass repair and parking lot
improvements). The court upheld the funding because the revitalization program made “grants
available to a wide spectrum of religious, nonreligious and areligious groups alike and employs
neutral, secular criteria to determine an applicant’s eligibility[.]” Id. at 289-291. Accord,
Taunton Eastern Little League v. City of Taunton, 389 Mass. 719, 726 (1983) (“allowing
religious use of State facilities or benefits as part of a neutral policy does not result in the
impermissible State sponsorship of religion[.] The fundamental requirement is that the
government must treat religious and nonreligious groups equally.”).10
Where the primary (and, indeed, only) effect of the CPA and these grants is to further
historic preservation, not the churches’ religious programs, they are valid under this second
Helmes guideline.
9
“[T]he ‘hermetic separation’ of church and State is an impossibility which the Constitution has never required.”
Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 560 (1979) (citation omitted) (denying taxpayers’ request for an
injunction, declaring that paying public monies for the salaries of legislative chaplains and the statute authorizing
such payment are constitutional). The SJC cited the Supreme Court’s reasoning in Zorach v. Clauson, 343 U.S. 306,
312-313 (1952), that the First Amendment “does not say that in every and all respects there shall be a separation of
Church and State.” Otherwise, municipalities “would not be permitted to render police or fire protection to religious
groups.” Colo, 378 Mass. at 560-561.
10
Taylor v. Town of Cabot, Vt. Super Ct. No. 329-6-16 (July 1, 2016) (Attachment C), also supports the Town.
The court granted a preliminary injunction against funding of interior improvements to a church. However, it
“accepts that the ‘mere fact that public funds are expended to an institution operated by a religious enterprise does
not establish the fact that the proceeds are used to support the religion professed by the recipient.” Id. at 12 (citations
omitted). Besides addressing interior renovations under a different constitutional and statutory scheme, the court
identified the key problem with the funding in that case: it was not administered pursuant to a program with neutral
and objective funding criteria. Id. at 15-16. Such criteria are precisely what the CPA provides.
{A0378024.12 }
17
C.
The CPA Avoids the Abuses that Prompted the Anti-Aid Amendment.
The third Helmes guideline is “the avoidance of the political and economic abuses that
prompted adoption of art. 46.” 406 Mass. at 877. The SJC found “no abuse or unfairness,
political or economic, in using public funds to preserve an historic memorial to war dead in
circumstances in which no private person appears likely to benefit specially from the
expenditure.” Id.
Similarly, the plaintiffs have not pointed and cannot point to any such abuse or unfairness
in this case. The historic preservation restrictions ensure that the public, not any private person,
will benefit from the funding. The CPA funding is not dependent on the user or the use of the
buildings; and the restrictions will run with the land and preserve the historic resources for the
benefit of the public regardless of who own them. The plaintiffs’ contention that the funding of
churches could be “politically divisive” (Pl. Memo. at 16) misses the mark. Where the CPA
applies to non-public entities and does not exclude churches, the Legislature saw no such risk.
The plaintiffs offer nothing but sheer speculation of religious favoritism by Acton. That
speculation is disproved by the 14 other approved CPA projects in the Town. Page 8, supra.
In fact, the only potential for abuse comes from the plaintiffs’ position. They claim that
the grants are “financially wasteful” because the churches have not shown a financial need. Pl.
Memo at 16. Yet, neither the CPA nor the Town requires applicants to prove need. Such a
requirement would deter applicants and frustrate the purpose of the CPA to promote preservation
of historic community assets. Either the plaintiffs are arguing for a means test to apply only to
active religious applicants (which would violate constitutional principles of neutrality and
require the Town to analyze the motives and religious beliefs of CPA applicants in determining
{A0378024.12 }
18
eligibility)11 or they are suggesting that the Town means test all applicants (which is wholly
unsupported by the CPA and antithetical to the Legislature’s intent in funding CPA projects).
III.
A Preliminary Injunction Would Contravene, not Serve, the Public Interest.
By any rational test, these historic resources are significant and worth preserving. In fact,
the plaintiffs never question these buildings’ historic significance. Yet they would have the
Court forbid the use of CPA funds to protect any of these resources merely because the buildings
are owned by religious institutions. The Anti-Aid Amendment compels no such result. The
CPA’s focus is on preserving historic resources, not on who happens to be the custodian of those
resources at any particular time. Put another way, the CPA is agnostic: whether a significant
historic resource is owned by the Town, a religious institution, a nonprofit or a private party, the
ravages of time are equally destructive, the need for protection is equally compelling, and the
irreplaceable loss caused by failure to do so is equally unforgiving. Strong and well-established
public interest supports the CPA grants in this case. A preliminary injunction would be inimical
to that public interest.
In fact, the disservice to the CPA and the public interest from an injunction would extend
well beyond Acton and these particular resources. The plaintiffs’ argument would jeopardize
CPA funding for all nonprofit, charitable and other private entities. Where the prohibitions
against funding of private entities and churches in the Anti-Aid Amendment are enunciated
identically, there would be no basis to limit the effect of an injunction to religious recipients.
Such a ruling would undercut a significant portion of the CPA program, severely limiting the
11
Doing so would push municipalities into the very forbidden territory the plaintiffs assert must be avoided. Cf.
Martin v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 150 (2001) (“It
is not for judges to determine whether the inclusion of a particular architectural feature is "necessary" for a particular
religion.”). See also Pl. Memo. at 11 (warning against “intrusive governmental inquiries about how they spend their
funds”).
{A0378024.12 }
19
impact of this important legis lation. Saginor Aff. ~ 9. 12 It would also jeopardize analogous state
funding of historic preservation projects of nonprofit organizations (including religious
institutions) throughout the state. See Holtz Aff. ~~ 4-7. A greater impailment of the public
interest in historic preservation across Massachusetts can hardly be imagined.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for temporary or prelimil1ary injunctive
relief should be denied.
If the Court nevertheless grants injunctive relief, it should require the plaintiffs to post a
bond in the amount of the Town's anticipated damages. Mass. R. Civ. P. 65(c). Those damages
would be at least $250,000. See Financial Acceptance Cmp. v. Garvey, 9 Mass. App. Ct. 94, 9697 (1980) (the Town will be entitled to the legal fees incwTed as a result of the preliminary
injunction, which would
i~clude
any fees to appeal or dissolve the injw1ction, if it wins at trial).
By its attorneys,
Dated: July 29, 2016
. Kreger, B
akreiger@andersonkreiger.com
N ina Pickering-Cook, BBO # 668030
npickeringcook@andersonkreiger.com
ANDERSON & KREIGER LLP
One Canal Park, Suite 200
Cambridge, MA 02141
(617) 621-6500
CERTIFICATE OF SERVICE
G
llh... p,.__..
N~ickeripook tJ....
I certifY that I served tllis document on counsel for plaintiffs by email and Federal
Express on this 29th day of July, 2016.
12
Of the thousands of CPA historic prese1vation projects across the state, public projects represent only a
fraction . The rest are projects involving historic resources owned by non-profit, religious and other private
entities. In Acton, for example, of the 14 historic preservation projects approved prior to the current projects, there
were 6 town-owned, 5 nonprofit-owned, 2 privately-owned, and I church-owned. Bartl Aff. ~ 37. Statewide, nonpublic entities, such as non-profits, museums, and religious institutions, have received a significant portion of the
over 4,000 historic preservation grants included in the state database. Saginor Aff. ~ 7-8. Of these, over 300
projects involving historic preservation of historic resources owned by religious institutions. Fowler Aff. ~ 5.
{A0378024.12)
20
Attachment A
Province Laws.— 1735-36.
[1st Sess.]
763
mortgager himself had or ought to have and an acknowledgement of satisfaction in the margin of the record of such mortgages,
by the mortgagee or his heirs, shall be as sufficient a discharge thereof,
to the creditor who hath redeemed or shall hereafter redeem the same,
or to his heirs, as it would haA-e been to the mortgager himself, or his
heirs provided^ that if the said right shall, by apprizement in due form
of law, happen to exceed the sum to be levied, with the necessary
charges, the overplus shall be paid by the creditor to the debtor Avithin
three months after levying the execution, or publication of this act.
lands, as the
;
:
Overplus to be
ptuYto
the"**
debtor.
—
Provided, cdso^
And be it further enacted by the authority aforesaid,
That all executions that shall hereafter be levied on Executions
[Sect. 2.]
lands or tenements, and the proceedings thereon, shall, at the chai-ge of enterecHn^the
the creditor, within three months after such levying, be entred in the registry of
office of the register of deeds for the county where such lands ![''"] [y]e. 15 Mass., 201.
spicii., 334.
And it is further provided and enacted,
That the debtor, whose right in equit}'' as aforesaid is Debtor allowed
[Sect. 3,]
taken b}^ execution as aforesaid, shall have liberty, for the space of one ^e^^f^^Ms right.
year next after levying such execution, of redeeming such his right, b}^
paying the full sum levied by execution on such right, with lawful [1]
interest, and all charges arising thereon, and such other sum or sums as
the creditor, at whose suit the execution was levied, shall have paid to
the person or persons to whom it was before mortgaged, or to the mortffager himself.
And
it is further enacted,
That such person or persons, at whose suit such lands
[Sect. 4.]
or right by equity of redeeming an}' mortgaged lands, have been, are,
or shall be taken by execution as aforesaid, shall be as legally and fully
entitled to the said lauds, or right of redeeming the mortgage or mortgages thereof, as the original mortgager, at the time of levyi'ng the
execution, was
and the said lands, or right of redeeming the same,
shall be and remain to the said creditor, and his heirs and assigns, forever, unless redeemed by the mortgager within one year, as aforesaid.
\_Passed arid published July 3.
Creditor to have
*°
the"iand?^^
;
CHAPTEE
10.
AN ACT FOR DIVIDING THE TOWN OF CONCORD, AND ERECTING A NEW
TOWN THERE BY THE NAME OF ACTON.
Wherea«5 the inhabitants and proprietors of the north-westerly part Preamble,
of Concord, in the county of Middlesex, called " The Village," or " New
Grant," have represented to this court that they lal)Our under great difficulties bj' reason of their remoteness from the place of publick worship,
and therefore desired that they and their estates, together with the
farms called Willard's Farms, ma}^ be set off a distinct and sep[a][e]rate
township, for which they have also obtained the consent of the town of
Concord,
Be
—
therefore enacted by His Excellency the Governor, Council and
Representatives in Genercd Court assembled, and by the autlwrity of
it
same,
[Sect. 1.]
That the said north-westerly part of Concord, together
with the said farms, be and hereby are set off, constituted and erected
into a distinct and sep[r^][e]rate township, by the name of Acton, and
agre[e]able to the following boundaries namely, beginning at the southwest corner of Concord old bounds, then^ south-westerly, on Sudbury
the
;
A new town
^
the name^of
-^c^o"-
^Tnliescribe^d.
—
;
Province Laws.— 1735-36.
764
[Chap. 11.]
and Stow lines, till it conies to the south-west corner of Concord village
then, north-westerly, by Stow line, till it comes to Littleton line then
then,
Ibounded, northerly, by Littleton, Westford and Chelmsford
easterly, by Billerica line, till it comes to the north-east corner of Concord old bounds then, easterly, by Concord old bounds.
And that the inhabitants of the lands before described
[Sect. 2.]
and bounded, be and hereby are vested with all the powers, privileges
and immunities that the inhabitants of the other towns within this
province are or by law ought to be vested with.
;
;
;
;
Provided,
That the inhabitants of the said town of Acton do,
[Sect. 3.]
within the space of three years from the publication of this act, erect
and finish a suitable house for the publick worship of God, and procure
and settle a learned, orthodox minister, of good conversation, and make
provision for his comfortable and honourable support.
Provided, also,
A7id be it further enncted,
That the inhabitants of the ^aid town of Acton shall be
[Sect. 4.]
liable and subject, notwithstanding their being set[t] off and constituted
a township as aforesaid, to pay their proportion of all province and
county rates, for this present year, in the town of Concord, and shall be
accordingly assessed in the same manner they would have been if this
act had never been made.
[Passed and published July 3.
Proviso.
—
Proviso.
CHAPTER
11.
AN ACT FOR DIVIDING THE TOWNS OF MENDON, SUTTON, UXBRIDGE
AND HOPKINTON, AND ERECTING A NEW TOWN IN THE COUNTY OF
WORCESTER, BY THE NAME OF UPTON.
Whereas the out-lands of the several towns of Mendon, Sutton,
Uxbridge and Hopkinton are competently filled with inhabitants, who
labour under difficulties by reason of their remoteness from the places
of publick worship in the said tov.ns, and have thereupon addressed
this court that they may be set off a distinct and sep[rt][c]rate township, and vested with all the powers and privile[d]ges that other towns
Preamble.
in this province are vested with,
Be it therefore enacted by His Excellency the Governoiir, Council and
liepresentatives in General Court assembled, and by the authority of the
same,
The bounds of a
new town
scribed.
de-
[Sect. 1.] That all the out-lands of the aforesaid towns of Mendon,
Sutton, Uxbridge and Hopkinton, comprised within the following
bounds, containing in the whole, twelve thousand nine hundred and
forty -three acres, together with one hundred and fift3"-one acres, taken
ofi" [./Vowi]
Mr. John Rockwood's farm, bounded as follows vizt.,
beginning at a pine tree, being the south-east corner of Grafton, and
from thence, extending north, bounding west on Grafton, till it comes to
the north-east corner thereof; and from thence, bounding by Westborough line till it meets with Hopkinton line from thence, extending
southerly, two hundred and twelve perch in the bounds between Sutton
and Hopkinton from thence, south, nine degrees east, four hundred
and ninety perch, to a stake and heap of stones from thence, south,
thirty-one degrees and thirty minutes east, one hundred and forty perch
from thence, south, sixty-one degrees and thirty minutes east, two hundred perch, to a heap of stones at Haven-Meadow from thence, easterly,
one hundred \_and'\ thirty-four perch, to the north end of a pond called
;
;
;
;
;
Attachment B
Attachment C